Citation Numbers: 68 P.2d 466, 156 Or. 443
Judges: ROSSMAN, J.
Filed Date: 3/25/1937
Status: Precedential
Modified Date: 1/13/2023
"A presumption is a deduction which the law expressly directs to be made from particular facts.": Section 9-803, Oregon Code 1930. The writer is of the opinion that the disputable presumptions declared in section 9-807, ibid, are available in all cases where the particular facts appear in the record from which the statutorily-prescribed deductions are to be made, except only where such presumptions are overcome by opposing evidence or broken in upon by a countervailing presumption:Consor v. Andrew,
Whether in a given case an appropriate presumption has been overcome, is a question for the triers of fact, and "they are not bound to find in conformity with the declarations of any number of witnesses which do not produce conviction in their minds against a less number, or against a presumption or other evidence satisfying their minds.": Section 9-2001, ibid.
The writer is in accord with the letter of the foregoing statutory excerpt in that he thinks that a presumption *Page 460 is a species of evidence. It is more than a mere direction as to which party shall proceed.
The only Oregon case cited in the opinion of the court upon the import of a presumption of law is Kernin v. City of Coquille,
In the case at bar, it is the opinion of the writer that the failure of the trial court to instruct upon the presumption "that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage", constituted error; but, because of the character of the testimony of plaintiff herself, such error was not reversibly prejudicial.
The writer concurs in the result. *Page 461